Jackson & Perkins Co. v. Mushroom Transportation Company Inc.

• Decision Date: 19 March 1945
• Citation: 41 A.2d 635,351 Pa. 583
• Parties: Jackson & Perkins Company, Appellant, v. Mushroom Transportation Company Inc., et al
• Court: Pennsylvania Supreme Court

41 A.2d 635

351 Pa. 583

Jackson & Perkins Company, Appellant, v. Mushroom Transportation Company Inc., et al

Supreme Court of Pennsylvania

March 19, 1945

Argued January 9, 1945

Appeal, No. 262, Jan. T., 1944, from judgment of C.P. No. 5 Phila. Co., Dec. T., 1942, No. 176, in case of Jackson &amp Perkins Company v. Mushroom Transportation Company, Inc., et al. Judgment affirmed; reargument refused April 9, 1945.

Assumpsit. Before MILNER, J., without a jury.

Findings and judgment for defendant. Plaintiff appealed.

Judgment affirmed.

John M. Smith, Jr., with him Ronald A. Anderson, for appellant.

W. Bradley Ward, with him Lemuel B. Schofield, for appellee, Mushroom Transportation Co., Inc.

Edward A. Kelly, with him H. Eugene Gardner, for appellees, Bickley's Auto Express and William Bickley.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. JUSTICE LINN

Plaintiff appeals from judgment for defendants ^[1] in this suit for damages resulting from the freezing of plants shipped in interstate commerce and described by the shipper as "highly perishable." Jury trial was waived. The case was thoroughly considered by Judge MILNER; judgment was entered on his findings after they were approved by the court in banc; they have the effect of a verdict of a jury: Athens Nat. Bank v. Ridgebury Twp., 303 Pa. 479, 483, 154 A. 791.

Plaintiff, January 5, 1942, shipped by motor truck thirty-two boxes, each 44 inches long, 20 inches high and 22 inches wide, containing about 16,000 dormant budded rose bushes, from Newark, New York, consigned to Florex Gardens, North Wales, Pennsylvania, the route being from Newark to Rochester, New York, thence to Philadelphia, thence to North Wales, Pennsylvania. The initial carrier, Goetzman and Newman, issued a bill of lading or shipping receipt in the usual form.

The transaction is governed by federal law: Chesapeake & Ohio Ry. v. Martin, 283 U.S. 209, 213, 51 S.Ct. 453. The plants were frozen and of no value when delivered to the consignee, facts making a prima facie case against defendants. The defendants are liable unless the record shows they discharged their obligation to transport and deliver: 49 USCA sections 20(11) (12); 49 USCA section 319; compare Chesapeake & Ohio Ry. v. Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318.

Plaintiff, in its statement of claim, avers that the shipment was "in a class known as 'perishable'"; that the boxes containing the plants "... bore instructions that the contents were perishable, easily frozen, and must be kept from extreme heat or cold.... 23. By reason of the negligence of the defendants in not protecting the said goods from cold and their negligent detention and delay in the transportation of the said goods, as aforesaid, the same were on their arrival at point of destination wholly spoiled and unfit for use, and wholly lost to the Plaintiff." In other words, plaintiff charges (1) negligence "in not protecting... from cold" and (2) negligent "detention and delay."

The learned judge, whose duty it was to find the facts, found that the damage "... was not caused by any negligent act or fault on the part of the defendants, but was caused by the inherent nature of the goods shipped, and natural causes, the risks of which the plaintiff, as shipper, assumed." Defendants were not insurers against loss resulting from the inherent nature of the plants.

We need not discuss plaintiff's argument on the burden of proof; the evidence is in the record; the only question now is whether the law was correctly applied to the evidence. If, on the evidence, a jury could not find for the defendants, the judgment must be set aside.

Defendant carriers had filed tariffs stating their services, rates and regulations. These tariffs bound all parties involved in the transaction and have the force and effect of an Act of Congress: Rau v. Wilkes-Barre R.R. Co., 311 Pa. 510, 513, 167 A. 230; Boston & Maine R.R. v. Hooker, 233 U.S. 97, 34 S.Ct. 526.

On January 5, 1942, at about 8:30 A.M., at Newark, N.Y., plaintiff delivered the shipment to Goetzman and Newman, and received from them the bill of lading which is the basis of this suit. Goetzman and Newman transported the boxes in a closed truck to the terminal of defendant, Mushroom Transportation Company (hereafter called Mushroom) in Rochester, New York. This depot was a large garage containing loading and unloading platforms for handling freight. We quote the learned trial judge's statement of the movement of the shipment. On the same day Mushroom "... loaded about half of the shipment on a truck which left Rochester on January 5th, at eight o'clock, P.M., and arrived in Williamsport, Pennsylvania on January 6th at 3:45 A.M., and which after a fifteen minute layover in order to change drivers and refuel, left Williamsport at 4 A.M. and arrived in Philadelphia on January 6th at 1:30 P.M. The balance of the shipment was loaded on another truck which left Rochester on January 6th and after a similar stop at Williamsport left that City on January 7th at 5 o'clock A.M. and arrived in Philadelphia on January 7th at 11:30 A.M. These trucks were of the 'closed van type with a closed top' and two full length rear doors, with a tail gate which closed over the rear doors and completely sealed the rear of the vans. The Mushoom Transportation Company had only one truck scheduled for the Philadelphia run on January 5th, and this truck had only capacity for about one-half of the shipment or 19 boxes. The remaining thirteen boxes were kept on a dock in the back part of its garage until they were shipped the next day. The dock was described as a platform built out about 60 feet from the back wall of the garage which was 200 feet long. The trucks or vans in which the boxes were shipped were neither heated nor refrigerated. The side walls of the vans were of metal ribbed and lined with a veneer, affording an air pocket of about 4 or 6 inches between the metal and the veneer. The back doors were also metal, veneered inside and were solid.

"Bickley's auto express was notified by Mushroom Transportation Company to pick up the first shipment on January 6th, 1942, at about 3 o'clock P.M. Bickley's sent a truck to Mushroom Transportation Company's depot at 1303 N. Front Street, in Philadelphia, and the driver reported with the first shipment at Bickley's Philadelphia platform at 407 Callowhill Street, Philadelphia, at about 4:30 P.M. and was instructed by Mr. Bickley to take the loaded truck to Bickley's garage at Jenkintown, Pennsylvania. The cases were taken from the platform of the Mushroom Transportation Company in Philadelphia about 4:30 P.M. on January 6th. It is only about a five minute drive from Mushroom Transportation Company's platform to Pickleys. The drive to Jenkintown garage takes about 35 minutes. Mr. Bickley testified that it was too late to make the same day delivery, so the truck was sent to Bickley's Jenkintown garage, where it arrived at about 5:30 o'clock P.M. and was kept there overnight. The truck was a panel body closed truck, with a solid top and the rear was closed by a slotted gate over which a tarpaulin was drawn. The garage at Jenkintown was constructed of stone and brick with a capacity of about 10 trucks, and is equipped with one door on each side by which it may be closed, The walls are 18 inches thick. It is an enclosed garage. It is not heated.

"On January 7th at about two o'clock P.M. Bickley was notified by Mushroom Transportation Company that the second shipment had arrived. Bickley picked up this shipment at about 4:30 o'clock P.M. and sent the truck to the Jenkintown garage where it was kept overnight. The second shipment apparently was made in the same type of truck as was the first shipment. The first shipment was forwarded from Jenkintown on January 7th at about 7:30 o'clock A.M. and reached North Wales at 8:30 or 9 o'clock A.M. The second shipment was sent out to North Wales at about the same time the next day, January 8th. The trucks were not heated nor refrigerated."

The southern terminus of the route of Mushroom Transportation Company in Pennsylvania, is Philadelphia; North Wales, the destination of the shipment is not on Mushroom's tariff route. The bill of lading provided that each carrier "... agrees to carry to its usual place of delivery at said destination, if on its own road... otherwise to deliver to another carrier on the route to said destination." When Mushroom brought the shipments to its terminal in Philadelphia, it was required, by the contract, to deliver them to "another carrier on the route to said destination." To comply...